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MEMBER DIARY

On Empathy

President Obama has made his choice and, as DeVine Law suggested upon Justice Souter’s announced retirement, he appears to have made a bold leftist ideological choice as well as a “twofer” Democratic Party political choice, with a female and a Hispanic in Second Circuit Federal Court of Appeals Judge Sonia Sotomayor.

We have suggested that the President had no reason to choose anything but a liberal activist ideological soulmate given his current popularity that is probably at its peak and with 59-60 votes in the Senate that must advise and consent for Sotomayor be confirmed, and so, we are not surprised that he passed over the much more moderate African-American Georgia Supreme Court Justice Leah Ward Sears, a proponent of judicial restraint.

But DeVine Law is sure that the Republican ranking member on the Senate Judiciary committee, Jeff Sessions will rightly ignore the nominee’s gender, race and other extraneous information regularly focused on by Democrats and, rather, concentrate the opposition’s inquiry into the most relevant matter of her judicial philosophy.

As Sessions has said, it should not matter what a judge’s political policy preferences are so long as they understand their proper constitutional role is to apply the law that We the People thru Constitutions and statutes have already enacted after free speech policy debates, elections and votes.

But as we know, many liberals (like Republican appointed Justice Anthony Kennedy and the retiring Souter) but especially Democrats, prefer a “living Consitution” that let’s judges apply “evolving standards of decency” and “empathy”:

Obama had said publicly he wanted a justice who combined intellect and empathy—the ability to understand the troubles of everyday Americans.

Democrats hold a large majority in the Senate, and barring the unexpected, Sotomayor’s confirmation should be assured.

If approved, she would join Justice Ruth Bader Ginsburg as the second woman on the current court.

Sotomayor is a self-described “Newyorkrican” who grew up in a Bronx housing project after her parents moved to New York from Puerto Rico. She has dealt with diabetes since age 8 and lost her father at age 9, growing up under the care of her mother in humble surroundings. As a girl, inspired by the Perry Mason television show, she knew she wanted to be a judge.

A graduate of Princeton University and Yale Law School, a former prosecutor and private attorney, Sotomayor became a federal judge for the Southern District of New York in 1992.

As a judge, she has a bipartisan pedigree. She was first appointed by a Republican, President George H.W. Bush, then named an appeals judge by President Bill Clinton in 1997.

We congratulate Judge Sotomayor of her excellent role model in Lawyer Mason. DeVine Law was also inspired by Della Street’s boss and also sought to make sure justice was achieved for minorities and lower income litigants in his trial law career.

In fact, DeVine Law recognizes the role of “empathy” in lawyers, voters, legislators and, in limited degrees, in trial judges. But for the life of me, I can’t think of how it should be a major factor in an appellate court judge that is upholding their Oath to uphold Constitutions.

Even at the trial level, Justice is supposed to be blind. Procedures are to applied uniformly no matter the race of the plaintiff. Substantive law is to applied verbatim no mater the gender of the defendant. That one party in a case or controversy is wealthy and another is poor should make no difference in applying the law to the facts.

I would say that understanding the limitations of intellect, education and circumstance could matter in situations where one must determine the “reasonable” expectations in a tort case or certainly in a case where a litigant chooses to represent themself without a lawyer. And, when it comes to sentencing in criminal cases where Judges are given discretion, certainly empathy is allowed.

But generally, the matter of empathy has already been properly and legally applied by the people and their representative in the formation of the laws passed by the legislature.

It is the duty of a judge to faithfully interpret and apply the law as it is given to her.

I believe that no one should be confirmed to a lifetime appointment to the Third Branch of Government if they cannot uphold the Oath they take, and anyone that would apply a “living Constitution” would be violating that Oath. I favor impeachment for such applications (as did Presidents Jefferson, Jackson and Lincoln), but alas, we haven’t the votes.

Nor do we have the votes to defeat such a liberal activist nominee given the numbers in the Senate, but it is vital that Republicans and conservatives (and we could very well persuade a few Democrats) educate the public on the matter of judicial philosophy during this confirmation process and, if it turns out the Judge Sotomayor sees a living constitution, that we vote en masse against the nominee on principle and to establish our bone fides for future political and legal battles.

We must not follow the old strategy of Sen. Orrin Hatch (R-UT) and later brag that we voted for liberal nominees since “elections have consequences” and the nominee could put together a sentence and had no criminal record.

Yes, Presidents get elected, but so do Senators, and the Oath is what matters. Uphold it, and reject any nominee that would not.

[This will be the first in a series of DeVine Law columns addressing President Barack Obama's nomination of Sonia Sotomayor to replace retiring Justice David Souter on the U.S. Supreme Court.]